[Federal Register Volume 72, Number 194 (Tuesday, October 9, 2007)]
[Rules and Regulations]
[Pages 57207-57209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-19633]



40 CFR Parts 52 and 81

[EPA-R03-OAR-2007-0476; FRL-8478-9]

Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Redesignation of the Erie 8-Hour Ozone Nonattainment Area 
to Attainment and Approval of the Area's Maintenance Plan and 2002 Base 
Year Inventory

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Pennsylvania. The Pennsylvania 
Department of Environmental Protection (PADEP) is requesting that the 
Erie 8-hour ozone nonattainment area (``Erie Area'' or ``Area'') be 
redesignated as attainment for the 8-hour ozone ambient air quality 
standard (NAAQS). The Area is comprised of Erie County, Pennsylvania. 
EPA is approving the ozone redesignation request for the Erie Area. In 
conjunction with its redesignation request, PADEP submitted a SIP 
revision consisting of a maintenance plan for Erie Area that provides 
for continued attainment of the 8-hour ozone NAAQS for at least 10 
years after redesignation. EPA is approving the 8-hour maintenance 
plan. PADEP also submitted a 2002 base year inventory for the Erie Area 
which EPA is approving. In addition, EPA is approving the adequacy 
determination for the motor vehicle emission budgets (MVEBs) that are 
identified in the Erie Area maintenance plan for purposes of 
transportation conformity, and is approving those MVEBs. EPA is 
approving the redesignation request, and the maintenance plan and the 
2002 base year emissions inventory as revisions to the Pennsylvania SIP 
in accordance with the requirements of the Clean Air Act (CAA).

DATES: Effective Date: This final rule is effective on November 8, 

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2007-0476. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State 
submittal are available at the Pennsylvania Department of Environment 
Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market 
Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Amy Caprio, (215) 814-2156, or by e-
mail at caprio.amy@epa.gov.


I. Background

    On July 25, 2007 (72 FR 40776), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed 
approval of Pennsylvania's redesignation request, a SIP revision that 
establishes a maintenance plan for the Erie Area that provides for 
continued attainment of the 8-hour ozone NAAQS for at least 10 years 
after redesignation, and a 2002 base year emissions inventory. The 
formal SIP revisions were submitted by PADEP on April 24, 2007. Other 
specific requirements of Pennsylvania's redesignation request SIP 
revision for the maintenance plan and the rationales for EPA's proposed 
actions are explained in the NPR and will not be restated here. No 
public comments were received on the NPR.
    However, on December 22, 2006, the U.S. Court of Appeals for the 
District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule 
for the 8-hour Ozone Standard. (69 FR 23951, April 30, 2004). South 
Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 
2006). On June 8, 2007, in South Coast Air Quality Management Dist. v. 
EPA, Docket No. 04-1201, in response to several petitions for 
rehearing, the D.C. Circuit clarified that the Phase 1 Rule was vacated 
only with regard to those parts of the rule that had been successfully 
challenged. Therefore, the Phase 1 Rule provisions related to 
classifications for areas currently classified under subpart 2 of Title 
I, part D of the CAA as 8-hour nonattainment areas, the 8-hour 
attainment dates and the timing for emissions reductions needed for 
attainment of the 8-hour ozone NAAQS remain effective. The June 8 
decision left intact the Court's rejection of EPA's reasons for 
implementing the 8-hour standard in certain nonattainment areas under 
subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let 
stand EPA's revocation of the 1-hour standard and those anti-
backsliding provisions of the Phase 1 Rule that had not been 
successfully challenged. The June 8 decision reaffirmed the December 
22, 2006 decision that EPA had improperly failed to retain measures 
required for 1-hour nonattainment areas under the anti-backsliding 
provisions of the regulations: (1) Nonattainment area New Source Review 
(NSR) requirements based on an area's 1-hour nonattainment 
classification; (2) Section 185 penalty fees for 1-hour severe or 
extreme nonattainment areas; and (3) measures to be implemented 
pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on the 
contingency of an area not making reasonable further progress toward 
attainment of the 1-hour NAAQS, or for failure to attain that NAAQS. In 
addition the June 8 decision clarified that the Court's reference to 
conformity requirements for anti-backsliding purposes was limited to 
requiring the continued use of 1-hour MVEBs until 8-hour budgets were 
available for 8-hour conformity determinations, which is already 
required under EPA's conformity regulations. The Court thus clarified 
that 1-hour conformity determinations are not required for anti-
backsliding purposes.
    For the reasons set forth in the proposal, EPA does not believe 
that the Court's rulings alter any requirements relevant to this 
redesignation action so as to preclude redesignation, and do not 
prevent EPA from finalizing this redesignation. EPA believes that the 
Court's December 22, 2006 and June 8, 2007 decisions impose no 
impediment to moving forward with redesignation of this area to 
attainment, because even in light of the Court's decisions, 
redesignation is appropriate under the relevant redesignation 
provisions of the CAA and longstanding policies regarding redesignation 
    In its proposal, EPA proposed to find that the area had satisfied 
the requirements under the 1-hour standard whether the 1-hour standard 
was deemed to be reinstated or whether the Court's decision on the 
petition for rehearing were modified to require something less than 
compliance with all applicable 1-hour requirements. Because EPA 
proposed to find that the area satisfied the requirements under either 
scenario, EPA is proceeding to

[[Page 57208]]

finalize the redesignation and to conclude that the area met the 
requirements under the 1-hour standard applicable for purposes of 
redesignation under the 8-hour standard. These include the provisions 
of EPA's anti-backsliding rules, as well as the additional anti-
backsliding provisions identified by the Court in its rulings. In its 
June 8, 2007 decision the Court limited its vacatur so as to uphold 
those provisions of the anti-backsliding requirements that were not 
successfully challenged. Therefore, EPA finds that the area has met the 
anti-backsliding requirements, see 40 CFR 51.900 et seq; 70 FR 30592, 
30604 (May 26, 2005) which apply by virtue of the area's classification 
for the 1-hour ozone NAAQS, as well as the four additional anti-
backsliding provisions identified by the Court, or that such 
requirements are not applicable for purposes of redesignation. In 
addition, with respect to the requirement for transportation conformity 
under the 1-hour standard, the Court in its June 8 decision clarified 
that for those areas with 1-hour MVEBs, anti-backsliding requires only 
that those 1-hour budgets must be used for 8-hour conformity 
determinations until replaced by 8-hour budgets. To meet this 
requirement, conformity determinations in such areas must continue to 
comply with the applicable requirements of EPA's conformity regulations 
at 40 CFR Part 93. The court clarified that 1-hour conformity 
determinations are not required for anti-backsliding purposes.

II. Final Action

    EPA is approving the Commonwealth of Pennsylvania's redesignation 
request, maintenance plan, and the 2002 base year emissions inventory 
because the requirements for approval have been satisfied. EPA has 
evaluated Pennsylvania's redesignation request that was submitted on 
April 24, 2007 and determined that it meets the redesignation criteria 
set forth in section 107(d)(3)(E) of the CAA. EPA believes that the 
redesignation request and monitoring data demonstrate that the Erie 
Area has attained the 8-hour ozone standard. The final approval of this 
redesignation request will change the designation of the Erie Area from 
nonattainment to attainment for the 8-hour ozone standard. EPA is 
approving the maintenance plan for the Erie Area submitted on April 24, 
2007 as a revision to the Pennsylvania SIP. EPA is also approving the 
MVEBs submitted by PADEP in conjunction with its redesignation request. 
In addition, EPA is approving the 2002 base year emissions inventory 
submitted by PADEP on April 24, 2007 as a revision to the Pennsylvania 
SIP. In this final rulemaking, EPA is notifying the public that we have 
found that the MVEBs for volatile organic compounds (VOC) and nitrogen 
oxides (NOX) in the Erie Area for the 8-hour ozone 
maintenance plan are adequate and approved for conformity purposes. As 
a result of our finding, the Erie Area must use the MVEBs from the 
submitted 8-hour ozone maintenance plan for future conformity 
determinations. The adequate and approved MVEBs are provided in the 
following table:

Adequate and Approved Motor Vehicle Emissions Budgets in Tons per Summer
                               Day (tpsd)
                       Budget year                          VOC     NOX
2009....................................................     6.5    15.6
2018....................................................     4.0     6.7

    The Erie Area is subject to the CAA's requirement for the basic 
nonattainment areas until and unless it is redesignated to attainment.

III. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not 
have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action merely approves a state rule implementing a Federal 
requirement, and does not alter the relationship or the distribution of 
power and responsibilities established in the CAA. This rule also is 
not subject to Executive Order 13045 (``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), because it approves a state rule implementing a Federal 
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

[[Page 57209]]

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 10, 2007. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action, approving the redesignation of the Erie Area to attainment 
for the 8-hour ozone NAAQS, the associated maintenance plan, the 2002 
base year emission inventory, and the MVEBs identified in the 
maintenance plan, may not be challenged later in proceedings to enforce 
its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

    Dated: September 25, 2007.
Donald S. Welsh,
Regional Administrator, Region III.

40 CFR part 52 is amended as follows:


1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart NN--Pennsylvania

2. In Sec.  52.2020, the table in paragraph (e)(1) is amended by adding 
an entry for the 8-hour Ozone Maintenance Plan and the 2002 Base Year 
Emissions Inventory for Erie County, Pennsylvania at the end of the 
table to read as follows:

Sec.  52.2020  Identification of plan.

* * * * *
    (e) * * *
    (1)* * *

 Name of non-regulatory SIP revision     Applicable geographic      submittal             EPA approval date                 Additional explanation
                                                 area                 date
                                                                      * * * * * * *
8-Hour Ozone Maintenance Plan and      Erie County.............        04/24/07  10/09/07 [Insert page number where
 2002 Base Year Emissions Inventory.                                              the document begins]

* * * * *


1. The authority citation for part 81 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

2. In Sec.  81.339, the table entitled ``Pennsylvania-Ozone (8-Hour 
Standard)'' is amended by revising the entry for the Erie, PA: Erie 
County to read as follows:

Sec.  81.339  Pennsylvania.

* * * * *

                                      Pennsylvania--Ozone (8-Hour Standard)
                                             Designation \a\                     Category/Classification
         Designated area         -------------------------------------------------------------------------------
                                     Date \1\             Type                Date \1\               Type
                                                  * * * * * * *
Erie, PA: Erie County...........        10/09/07  Attainment
                                                  * * * * * * *
\a\ Includes Indian County located in each county or area, except otherwise noted.
\1\ This date is June 15, 2004, unless otherwise noted.

* * * * *
[FR Doc. E7-19633 Filed 10-5-07; 8:45 am]